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OCDW 11.30.15

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

OKLAHOMA

Weeks v. State, 2015 OK CR 16 (November 23, 2015): Guilty Pleas; Statutory Construction: Weeks was charged in Rogers County (the Hon. J. Dwayne Steidley, presiding) with being a sex offender loitering within 500 feet of a child care center. He challenged the constitutionality of the statute, but instead of going to trial and being convicted, he entered a negotiated plea of no contest. He was sentenced to six months in jail, but appealed to challenge the constitutionality of the statute. Notably, in this certiorari appeal, Weeks did not challenge the voluntary nature of his plea. The Court held: 1) a facial challenge to the statute is a narrow exception to the rule that a plea waives all non-jurisdictional issues (thus, the Court addressed the facial challenge to the statute here); and 2) the statute is not unconstitutionally vague. NOTE: Weeks pressed a challenge to the facial validity of the statute, not as it applied to him.

Eric Sample v. State of Oklahoma, ex rel. Department of Public Safety, No. 113,871 (Okla. Civ. App., Div. III, November 6, 2015) (Released for Publication): DUI (DPS): In this driver’s license appeal, Judge James B. Croy (Oklahoma County) set aside a revocation based upon an inadmissible breath test sample that was obtained with a gas canister and mouthpiece that was approved improperly by the Board of Tests (through a resolution by the Board, rather than through an administrative rule). In this appeal, the Court affirmed.

TENTH CIRCUIT

United States v. Jerold D. Fisher, No. 14-3257 (10th Cir., November 10, 2015) (Published) (Lucero, Holmes & Matheson): Waiver (Appellate Issues): This is an odd case involving breached plea agreements by both sides, and an allegation of vindictive prosecution, but the panel dismissed this claim because it was improperly briefed.

Julius Darius Jones v. Maurice Warrior, Warden, No. 13-6141 (10th Cir., November 10, 2015) (Matheson, Bacharach & Moritz) (W.D. Okla., Hon. Timothy D. DeGiusti): Habeas Corpus (Capital Habeas Cases): Oklahoma capital habeas case where the denial of relief is affirmed over a single claim of IAC relating to an allegation that trial counsel failed to make an effort to corroborate a lead that the co-defendant admitted to the killing, but blamed Jones in an effort to avoid the death penalty.

United States v. Zachary Krueger, No. 14-3035 (10th Cir., November 10, 2015) (Published) (Tymkovich, Chief Judge, Ebel & Gorsuch): Search and Seizure (Jurisdiction of Court): The district court granted a motion to suppress evidence seized in Oklahoma pursuant to a warrant issued by a magistrate in Kansas, on the basis that it violated Rule 41 powers of magistrates and that prejudice resulted therefrom. In this appeal, the panel affirmed.

UNITED STATES SUPREME COURT

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

No new cases.

OTHER CASES OF NOTE

United States v. Aaron J. Webster, No. 14-2822 (8th Cir., June 12, 2015): Federal Sentencing Guidelines (PSR): Maximum sentence of 120 months for possession of an unregistered rifle is reversed because the district court relied upon contested facts in the PSR (on plain error review, no less).

United States v. Frank Dwayne Randolph, No. 13-5477 (6th Cir., July 24, 2015): Inconsistent Verdicts: Conspiracy count is reversed based upon inconsistent verdict where the jury could not have found guilt for a drug conspiracy while simultaneously determining that the conspiracy did not involve any of the charged drugs.

United States v. H. Ty Warner, No. 14-1330 (7th Cir., July 10, 2015): Federal Sentencing Guidelines (Reasonableness): H. Ty Warner, the billionaire creator of Beanie Babies, pled guilty to evading $5.6 million in taxes. The Guidelines called for a sentence of 46-57 months, but the district court imposed a sentence of two years probation and a $100,000 fine along with some community service. The Government appealed the sentence, wanting incarceration, but in this unusual opinion, the panel found that the district court exercised reasonable discretion in light of the background and charity work of Warner.

JAILER NOT CHARGED: Prosecutors in Cherokee County have declined to file charges against a former jailer accused of planning to have sex with a female inmate upon her release from jail (no physical contact occurred).

PRISONERS MISSING: Two inmates have walked away from the Northeastern Oklahoma Community Corrections Center in Vinita.

JAIL SINKING: The 8-year-old Custer County Jail is sitting on an “eroding” hill, which will cost a half million dollars to repair.

NEW UNIFORMS: Deputies in Woodward County have received new uniforms for the first time in years, complete with the American flag.

PRISON LAWSUIT: A former prison guard in Lawton has filed a lawsuit claiming that he was fired for complaining about an assault.

MILITARIZATION: The Sheriff in Bryan County continues to acquire surplus military equipment, including more military vehicles and a second helicopter; also, Oklahoma Watch keeps track of how some of this military equipment is distributed.

FRIDAY, DECEMBER 11, 2015: The Criminal Law Hodgepodge XXVI will take place at the Tulsa County Bar Association. The moderators will be Paul Brunton and Shena Burgess. The seminar is good for 6 hours of CLE (including one hour of ethics). For more information contact Paul Brunton at 918.599.8600 or paul@paulbruntonlaw.com.

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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